289
Tjiptabudy, The Application of the Balance Principal in the Natural Resources Management in Marine
the ishermen, and d conlicts between resource users.
5
Ignoring legal pluralism, which is the third characteristic of marine management policy, is
incarnated in the form of lack of recognition of marine resource management system based on
customary law. In fact, such management system is still practiced in many regions. Some examples
could be given, such as the system of sea territorial rights in Maluku or isheries in Bagang and
Rompong of South Sulawesi.
According to Van Vollenhoven,
6
people in South Sulawesi have for long practiced the claims
over waters for ishing purposes. In Aceh, certain parts of the sea near the coast can be controlled
from any permission from the Sultan. In Tegal, coastal waters are divided among the ishermen
as successive gogolan provided for them to catch ish. In Ambon, the waters are considered as coastal
village territory. In Banten, coastal waters called
patenaken only entitles the concerned villagers to catch ish. Even to a certain degree, legal pluralism
in the management of marine resources also hints
that the sea can be an object of single ownership, something which is diametrically different from the
doctrine of common property.
2. Ulayat Right of Adat Community or Indigenous Peoples over Ocean and
Coastal Areas
Hak ulayat laut communal right of the ocean is the Bahasa translation of a phrase in
English, “sea tenure”. As Sudo
7
cited Laundgaarde, the term refers to a set of sea tenure rights and
mutual obligations that arise in connection with the ownership of marine areas. Sea tenure is a
system, in which several people or social groups utilize marine areas, set the level of exploitation
of the region, which means also protecting it from excessive exploitation over exploitation.
Completing the Sudo limit, another scientist named Akimichi Tomoya
8
said that property rights have the connotations to own, to access, and to use.
These connotations do not only refer to the ishing area ishing ground, but they also refer to the
capturing techniques, equipment used technology
or the captured and collected resources. Furthermore, Sudirman Saad
9
said that there are three main elements to the ulayat or communal
rights, namely: Firstly, the legal community as the
subject of communal rights is a community that is controlled, is permanent or ixed, and has its own
power as well as movable and immovable properties.
Secondly, the leadership institution having public
and civil authority over the territory of communal
rights. Thirdly, the region which is the object of
communal rights, consisting of land, water and all natural resources contained therein. The region
typically is an actually occupied area and the results are collected for the lives of members of the legal
community concerned. Meanwhile, Wahyono
10
concluded that in communal rights of the ocean, there are three main
variables, namely:
Firstly, the region. Communal right of the
ocean is not only limited to zoning restrictions, but also exclusivity of the region. This exclusivity
may also apply to marine resources, the technology used, and the level of exploitation as well as the
constraints that are temporal.
Secondly, the social right-holding unit. Such
units are very diverse of individual nature, kinship group, village communities to the State. This is
about transferability, namely how the exploitation right is transferred from one party to another party,
5
M. Arif Nasution, et al., 2005, Isu-Isu Kelautan – dari Kemiskinan hingga Bajak Laut, Pustaka Pelajar, Yogyakarta, p. 105.
6
Sudirman Saad, 2003, Politik Hukum Perikanan Indonesia, Lembaga Sentra Pengembangan Masyarakat, Jakarta, p. 13.
7
Sudo Ken Ichi, “Social Organization and Types of Sea Tenure in Micronesia”, as cited by Kenneth and R.E. Johannes Eds. 1983, Traditional Marine Resources Management in Paciic Basin: An Anthropology, UNESCOROSTSEA, Jakarta, p. 9.
8
Akimichi Tomaya, 1991, Territorial Regulation in the Small Scale Fisheries of Ittoman, National Museum of Ethnology, Osaka, p. 18.
9
Sudirman Saad, Op.cit., p. 13.
10
A. Wahyono, 2000, Hak Ulayat di Kawasan Timur Indonesia, Media Presindo, Yogyakarta, p. 6.
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MIMBAR HUKUM Volume 26, Nomor 2, Juni 2014, Halaman 285-296
and equity, which is the division of rights into a single unit.
Thirdly, legality and its implementation
enforcement. On issues of legality, the subject is about the legal basis underlying the enactment of
the communal rights of the ocean, which in some cases are in the form of written rules. While in
other cases, it shows that the implementation of the customary rights of the sea is extra-legal practice
because it is based on the habits that people done, not the laws.
Thus, theoretically it can be said that the reference to the indigenous marine rights
communal rights of the ocean are a set of rules or practices or management of marine areas and
resources in it based on customs performed by coastal communities in the villages.
This set of rules is related to who owns the rights to an area, the type of resources that may be
captured, and techniques that are allowed to exploit the resources that exist in a sea region.
As already mentioned above, the communal rights of the ocean refer to a set of reciprocal rights
and obligations that arise in the shared ownership of the institution. The term shared ownership here
refers to the division of joint property rights in the management and utilization of a particular resource.
The concept of ownership when applied to resource means as a primary social institution which has the
composition and function to set up more resources based on customs, prohibitions and family.
Therefore, the institution in a system of ownership or control of shared resources cannot be separated
from the existence of a social order that has binding force for each individual member of a community.
The rules formed in the shared control of the system are basically a collective consciousness.
In this case, the collective consciousness has two fundamental natures.
11
First, it implies that the collective consciousness of a community or
social group is outside the “individuality” of each individual member of the society. So the collective
consciousness of its existence does not depend on the existence of any individual, but rather the
opposite, that is always inherited or disseminated from one generation to the next. Second nature,
collective consciousness contains a psychic power that forces individuals to group members adapt to it.
Based on the given description, it can be said that the function of communal rights of the ocean
within a community can be seen from how far the related institutions provide a stable social structure
of the community.
3. Ulayat Rights and State Tenure
